Usery v. Johnson

• Decision Date: 19 August 1977
• Docket Number: No. A3-75-111.,A3-75-111.
• Parties: W. J. USERY, Jr., Secretary of Labor (Successor to John T. Dunlop Resigned), United States Department of Labor, Plaintiff, v. Horace JOHNSON and Northern School Supply Co., a corporation, Defendant.
• Court: U.S. District Court — District of South Dakota

436 F. Supp. 35

W. J. USERY, Jr., Secretary of Labor (Successor to John T. Dunlop Resigned), United States Department of Labor, Plaintiff, v. Horace JOHNSON and Northern School Supply Co., a corporation, Defendant.

No. A3-75-111.

United States District Court, D. North Dakota, Southeastern Division.

March 31, 1977.

On Injunctive Remedy August 19, 1977.

Harold O. Bullis, U. S. Atty., Fargo, N. D., for plaintiff; William J. Kilberg, Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., T. A. Housh, Jr., Regional Sol., U. S. Dept. of Labor, Kansas City, Mo., Henry C. Mahlman, Associate Regional Sol., U. S. Dept. of Labor, Denver, Colo., of counsel.

Armond G. Erickson, Tenneson, Serkland, Lundberg & Erickson, Ltd., Fargo, N. D., for defendant.

ORDER

BENSON, Chief Judge.

This action was brought by the Secretary of Labor (Secretary) under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et seq., to enjoin alleged wage discrimination on the basis of sex and to recover for female employees of Defendant Northern School Supply Co. (Northern)¹ the difference between their wages and the wages of two male employees allegedly doing equal work while employed by Defendant.² Northern denies the charge and defends any wage variances on the grounds that "differences in compensation are due to additional duties and capacities in which the people hired render service." The case was tried to the court, and taken under advisement after the evidence was in.

According to the interrogatories and responses and requests for admissions and responses in the record, all of which were made a part of the evidence at trial, Defendant is an employer within the meaning of the Fair Labor Standards Act, and is engaged in the operation of an enterprise subject to the provisions of the Act. 29 U.S.C. § 203(r), (s)(1). This court's jurisdiction over the present action is conferred by Section 17 of the Fair Labor Standards Act.³

The Secretary has alleged specifically the violation of Section 6 of the Fair Labor Standards Act, otherwise known as the Equal Pay Act of 1963 (the Act). Section 6 provides in part:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. 29 U.S.C. § 206(d)(1).

In brief, the Secretary charges that the duties of the male and female sales clerks employed by Defendant were essentially the same, and that the female sales clerks have received lower rates of pay than the two males even though the work performed by each of the sales clerks, male and female, was performed with similar skill, effort and responsibility, and under similar working conditions. The Secretary further charges that no other factor other than sex justified the pay differential.

At the outset, several established principles with reference to the Equal Pay Act should be noted. In actions alleging wage discrimination under the Equal Pay Act, the burden of proof is on the Secretary to show that the jobs involved are equal within the meaning of the Act. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Schultz v. American Can Company, 424 F.2d 356, 360 (8th Cir. 1970). In meeting this burden, the Secretary need not prove that the jobs in question are identical; the test is whether they are substantially equal, Peltier v. City of Fargo, 533 F.2d 374, 377 (8th Cir. 1976), requiring the same effort, skill and responsibility, Schultz v. American Can Company, supra, 424 F.2d at 360.

In making job comparisons under the Equal Pay Act,

application of the equal pay standard is not dependent on job classifications or titles but depends rather on actual job requirements and performance. . . . Job titles are frequently of such a general nature as to provide very little guidance in determining the application of the equal pay standard. 29 C.F.R. 800.121.⁴

See also, Hodgson v. Miller Brewing Company, 457 F.2d 221, 227 (7th Cir. 1972); Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 724 (5th Cir. 1970).

Finally, where the Secretary sustains his burden of proof by demonstrating that the jobs in question are substantially equal, and that differences exist between the pay rates of males and females performing such jobs, the burden of proof then shifts to the employer to show the discrimination is justified under one of the exceptions listed in the Act.⁵ Corning Glass Works v. Brennan, supra, 417 U.S. at 196, 94 S.Ct. 2223; Hodgson v. Security National Bank of Sioux City, 460 F.2d 57, 59 (8th Cir. 1972).

The dispute in this case centers around two principal questions: (1) were differences in the pay rates of the male and female sales clerks at Northern justified by substantially unequal jobs being performed by the males and females; and (2) if the answer to the first question is in the negative, were the male clerks involved in a bona fide training program, a "factor other than sex," which would justify the pay disparities.

I. WERE THE JOBS SUBSTANTIALLY EQUAL.

The evidence at trial established that Defendant's retail store is organized in several sections or departments, among which are arts and crafts, books, stationery, furniture, toys and games. The store is situated in two adjoining buildings, with doorways providing access from one to the other. From the evidence, it appears that the furniture portion of the store is situated in one building, and the other sections or departments are located in the second building.

Much of the testimony at trial concerned the various duties of sales clerks at Northern. Clerks, both male and female, waited on customers, marked prices on goods, stocked shelves, took telephone orders, wrote out charge slips and operated the cash register. In addition, they cleaned and straightened shelves, and, to varying degrees, obtained stock from the warehouse upstairs. Most of the clerks who testified were assigned to work in specific departments at Northern: Duane Emmel worked in stationery and furniture prior to terminating his employment with Northern;⁶ Ellen Honek works in books, toys and teaching aids; Margaret Smith worked in all departments at various times; Almae Larson worked primarily in stationery; Paula Johnson worked in books; Marla Anderson worked in stationery and furniture;⁷ Linda Overby works in stationery; Jeanette Weenike works in arts and crafts; and Robert Zabell works in stationery and furniture.

Defense counsel attempted through various witnesses to emphasize additional duties performed by the male clerks, Emmel and Zabel, in connection with their furniture department responsibilities. Emmel testified that on occasion he would take customers to the warehouse (located above the retail portion of the store) to see a specific item of furniture not on the floor in the retail section. This might necessitate opening up packing cartons and taking the furniture items out of boxes. At times he would help customers carry merchandise which they had purchased to their automobiles. He took his lunch break at a different time than the retail store manager at Northern, Michael McQuillan, who was in charge of the furniture department. Emmel also stated that prior to leaving Northern he became involved in giving discounts in furniture sales; however in response to questions posed by Plaintiff's counsel, Emmel stated that discount boundaries were set by McQuillan. Emmel also apparently set up and arranged furniture displays in the furniture section of the retail store.

Robert Zabell testified that he currently spends about fifty per cent of his time in the furniture department. Zabell's testimony, as well as that of McQuillan, indicated that Zabell's functions in the furniture department were substantially the same as Emmel's.

Based on all the testimony adduced at trial, as well as evidence contained in the interrogatories and responses and requests for admissions and responses introduced in evidence at trial, this court has determined that the jobs of those female clerks about whom testimony was adduced and the jobs of the two male clerks in question were substantially equal, and that the male clerks were paid at a rate higher than female clerks at Northern for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . .." 29 U.S.C. § 206(d)(1).

First of all, the skill required of each of the clerks in the selling of merchandise was substantially the same whether the goods sold were furniture items or items from any other department at Northern. According to the Interpretive Bulletin for the Equal Pay Act,

skill includes consideration of such factors as experience, training, education, and ability. It must be measured in terms of the performance requirements of the job. 29 C.F.R. 800.125.

Defendant has not claimed that experience was a factor upon which the pay disparities between male and female clerks were based. Many of the female clerks had much more experience in sales clerk duties than did either of the two males at the time the males were hired,⁸ and even among the female clerks, experience...